KAWASAKI MOTORS PTY LTD v HOGG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 30 March 1995, 30 March 1995 [1995] NSWCA 233 Damages — No question of damages. Cole JA This is an appeal from a decision of his Honour Judge O'Reilly delivered on 11 October 1994. The respondent, Paul Anthony Hogg, was injured in circumstances in which the appellant became responsible for the consequences of those injuries. The trial judge awarded damages to the respondent. In particular, he awarded the sum of $40,000 for general damages, the sum of $50,000 for the future loss of income earning capacity, the sum of $5,000 for the cost of a possible future operation, and the sum of $4,700, being the wage loss which the respondent may suffer if he had the future operation which his Honour contemplated. The respondent in the accident suffered significant injuries to his ankle. In the result, he suffers from an early onset of osteo-arthritis which restricts movement in the ankle. There was medical evidence before the trial judge that in future it may be necessary for the respondent to have arthrodesis, which would have the effect of fixing the injured ankle. There was also evidence that that will impede his employment, he presently being employed as a maintenance man. The trial judge found that, on the balance of probabilities, that operation would be required some time in the future. He also found that there would be an impact on his future earning capacity. The trial judge calculated the loss attributable to the reduction in future earning capacity upon the basis of an assessment of loss of $100 per week in that income earning capacity, which figure his Honour deferred for some eight years, being presumably the time at which his Honour thought the operation might occur. On that basis a sum of $50,000 was awarded for future loss of income earning capacity. There was evidence before his Honour that if the arthrodesis operation was to occur its cost would be in the order of between $7,000 and $10,000. His Honour allowed in that respect the sum of $5,000, but did not make clear the basis on which that reduction was made from the cost of the operation before him. It may have been made upon the basis that his Honour was discounting the possibility or probability of the operation having to occur at all, or it may have been his Honour was discounting the cost to the present day value on the basis that the operation would occur some time in the future, or it may have been a combination of each of those. In addition, his Honour assumed that if the respondent had the operation, which he found as a probability was likely to occur, there would be a wage loss of $4,700 suffered in the futures and he allowed that. It was argued in the written submissions, which are commendably precise, that there was insufficient evidence to find as a probability that the operation would occur in the future. It was also argued that there was no basis for finding that the future wage loss of $100 until the respondent achieved the age of sixty-five years, 2 UNREPORTED JUDGMENTS which his Honour deferred for some eight years, was an appropriate basis for calculating any future economic loss. For my part, I am disposed to agree with those submissions. The appellant, however, very properly indicated that if the trial judge had made the appropriate assessment of the probabilities in accordance with the tests laid down in Malec v JC Hutton Pty Ltd!, in particular at 643, then the findings that his Honour made of a sum of $50,000 as a cushion for the loss of future income earning capacity was a finding which was available to his Honour as being a finding within an appropriate range for such a cushion, bearing in mind in particular the age and early incapacity of the respondent. A similar concession was made in respect of the sum for the cost of the operation, because if one made the assessment required by Malec? of the possibility or probability of that being required, then it would be appropriate to allow a figure for the likelihood of whatever degree that that operation would be necessary. Accordingly, the appellant's position was that, although the reasoning disclosed in his Honour's judgment did disclose error, had the matter been approached correctly in accordance with the principles in Malec v Hutton3 the same result in relation to the items I have been dealing with would have been achieved. I agree with those submissions. In those circumstances it seems to me that grounds 1 and 2 should be upheld, but that the trial judge's ultimate assessments and findings in relation to the amounts which his Honour allowed for future loss of income earning capacity, for the cost of the future operation of arthrodesis and for wage loss attendant upon such an operation should be confirmed. This court is in this particular case in a position to make an appropriate assessment applying the correct principles enunciated in Malec v Hutton4 and the result achieved by the trial judge in money terms is achieved by performing that task. The only remaining matter relates to general damages. His Honour awarded $40,000. It is conceded that that figure is within the available range. In those circumstances, whilst grounds | and 2 of the appeal should be upheld, in my opinion the appeal should be dismissed with costs. Priestley JA I agree. The orders of the court will be as proposed by Cole JA. Appeal dismissed with costs. Counsel for the Appellant: D Elliott Instructed by: Dunhill Madden Butler Counsel for the Respondent: B Hughes Instructed by: Abbott Tout - (1990) 169 CLR 638 . (1990) 169 CLR 638 . (1990) 169 CLR 638 . (1990) 169 CLR 638 RwWNS